CHAPTER XIV. OF MASTER AND SERVANT. Of the rights of persons in their private economical relations. 1. Master and servant. 2. Husband and wife. 3. Parent and child. 4. Guardian and ward. [ *423 ] HAVING thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in private œconomical relations. The three great relations in private life are, 1. That of master and servant (1); which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being its principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order. *In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed; secondly, the effect of this relation with regard to the parties themselves; and, lastly, its effect with regard to other persons. (1) The subject of injuries to the rights which arise from the relation between master and servant is discussed in Vol. 3, p. 141. sorts of servants. I. As to the several sorts of servants: I have formerly ob- 1. of the several served (a) that pure and proper slavery does not, nay cannot, subsist in England (2): such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. The three origins of the right of slavery, as- slavery arises signed by Justinian (b), are all of them built upon false foun dations (c). As, first, slavery is held to arise "jure gentium," 1. By conquest. from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin 2. By sale. "jure civili;" when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very *just but when applied to strict slavery, in the sense of the [*424 ] laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life and liberty, both of which, in absolute slavery, are held to be in the master's disposal? His property also, the very price he seems to receive, (a) Pa. 127. (b) Servi aut fiunt, aut nascuntur : fiunt jure gentium, aut jure civili: nas cuntur ex ancillis nostris. (Inst. 1. 3. 4). (2) Sec ante, p. 41, n. 5. CHAPTER XIV. OF MASTER AND SERVANT. Of the rights of persons in their private economical relations. 1. Master and servant. 2. Husband and wife. 3. Parent and child. 4. Guardian and ward. [ *423 ] HAVING thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in private oeconomical relations. The three great relations in private life are, 1. That of master and servant (1); which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent him. 2. That of husband and wife; upon which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being its principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order. *In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed; secondly, the effect of this relation with regard to the parties themselves; and, lastly, its effect with regard to other persons. (1) The subject of injuries to the rights which arise from the relation between master and servant is discussed in Vol. 3, p. 141. sorts of servants. I. As to the several sorts of servants: I have formerly ob- 1. Of the several served (a) that pure and proper slavery does not, nay cannot, subsist in England (2): such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where. The three origins of the right of slavery, as- Slavery arises signed by Justinian (b), are all of them built upon false foundations (c). As, first, slavery is held to arise "jure gentium," 1. By conquest. from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that, by the law of nature or nations, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin 2. By sale. "jure civili;" when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very *just but when applied to strict slavery, in the sense of the [*424 ] laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life and liberty, both of which, in absolute slavery, are held to be in the master's disposal? His property also, the very price he seems to receive, (a) Pa. 127. (b) Servi aut fiunt, aut nascuntur : fiunt jure gentium, aut jure civili: nas cuntur ex ancillis nostris. (Inst. 1. 3. 4). (2) See ante, p. 41, n. 5. 3. By birth. The law's abhorrence of slavery. devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that, besides these two ways by which slaves "fiunt," or are acquired, they may also be hereditary: "servi nascuntur;" the children of acquired slaves are jure naturæ, by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring. Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation (3): so that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3, which ordained that all idle vagabonds should be made slaves, and fed upon bread and water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled, by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards (d). And now it is laid down (e), that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person and his property. Yet, with regard to any right which the master may have lawfully (d) Stat. 3 & 4 Edw. VI. c. 16. (e) Salk. 666. (3) By the statute of 3 & 4 Gul. IV. c. 73, slavery was abolished throughout the British colonies. The sum of twenty millions sterling, which was assigned to the West India planters as a compensation for the loss they sustained by the liberation of their slaves, was no doubt a serious addition to our national burthens; but it was right that they who had been participators in the crime of depriving fellow-creatures of liberty, and sharers in the profits which for a century and a half had been made by the prolonga tion of that crime, should also bear a proportion of the pecuniary loss incurred by its tardy discontinuance. Whether all the provisions of the act alluded to were well digested, may be seriously doubted; but as to the principle of the measure, there can be no question. It may not rapidly produce all the benefits which philanthropists anxiously desire; but an act of justice to injured persons is not to be repented of, although the benefits of that atonement may not be immediately appar ent. |